Building safety in practice – an update

Posted: 22/03/2024

Since the Building Safety Act 2022 gained royal assent in April 2022, there have been numerous pieces of secondary legislation which have brought various segments of the act into force, provided further detail to its provisions, and sought to correct drafting errors. Further amendments are proposed in the Leasehold and Freehold Reform Bill 2024, among others.

In addition to the legislation, the courts have seen cases on various matters including landlord certificates, remediation orders, remediation contribution orders, arguments over who can be accountable persons, the extension of limitation under the Defective Premises Act 1972, and service charge recoverability. Appeals are now being pursued in respect of some of these decisions. It is surprising that more cases have not yet resulted in decisions from the courts, given the importance of the Building Safety Act. Many may still be making their way to trial.

When it comes to building safety issues, we advise many parties and organisations including building owners, major institutional landlords, developers, contractors, consultants, insurers and leaseholders. Uniquely, we have a long history of specialist expertise in fire safety matters. This includes advising on matters arising from the large and devastating fires such as the fire at the Royal Marsden Hospital in 2008, Lakanal House in 2009 and Grenfell Tower in 2017. We have considerable experience in structural safety, and have recently observed a surge in inquiries for this specialist area.

Over the last few years, both prior to the act gaining royal assent and since, our dedicated fire and building safety team has been actively advising clients on a wide range of building safety issues including:

• Investigations into, and claims arising from, building safety defects, including both fire safety defects and substantial latent structural issues. We have advised on rights of recourse, including the new extended retrospective 30 year limitation period under Section 1 of the Defective Premises Act 1972, and on subsequent remediation and settlement agreements. We have successfully avoided lengthy litigation in many cases.
• The Developer’s Pledge (which led to larger developers signing up to the Developer’s Self-Remediation Contract). We have been heavily involved in negotiating and agreeing licences to facilitate investigations and Works Contracts for carrying out of remedial works. Our advice has covered the interaction between civil claims and the pledge, including questions over what works and costs are (and are not) covered, and wider strategies for resolving claims.
• We have provided specialist guidance to clients on applications for funding through the government’s Non-ACM Building Safety Fund for over 50 buildings, procuring remedial works thereunder.
• Building Liability Orders (BLOs) under Section 130 of the Building Safety Act. We’ve seen, and been involved in, an increasing number of claims for BLOs, which effectively allow a piercing of the 'corporate veil' such that legal liability for fire safety defects (and other serious defects) can be transferred to a company associated with the company liable for the defects.
• Identifying the appropriate Principle Accountable Person (PAP) and dealing with tribunal proceedings where disputes over the identity of the PAP arise. Advising on duties and responsibilities of PAPs.
• Advising an Accountable Person in respect of obtaining information from the PAP under the BSA, The High-Risk Buildings (Key-Building Information etc) (England) Regulations 2023, The Regulatory Reform (Fire Safety) Order 2005 and the Fire Safety Act 2021 to enable our client to ensure the buildings are safe.
• Advising on portfolio management, remediation measures, regulation and fire safety law compliance.
• Advising landlord clients in relation to cladding remedial schemes, assessing rights of recovery from leaseholders under the occupational leases.
• Advising on and pursuing exit opportunities under acquisition contracts and agreements for lease resulting from building safety issues.
• Advising on recoverability of service charges relating to building safety. Advising in relation to the requirements of the section 20 consultation process and the need to apply for dispensation in circumstances where a latent defect in the design and construction of the building constituted a health and safety risk to the residents.
• Advising on insurance coverage in respect of fire safety and external wall construction, including advising on liability, scope of cover, mitigation costs, cladding exclusions, design versus workmanship and aggregation.
• Advising on the correct approach to measurement of height of buildings to determine whether they are higher risk buildings.

Looking forward

For anyone who sought to make use of the transitional arrangements which apply to higher risk building work, the 6 April 2024 deadline is fast approaching. For those projects which have not utilised the transitional arrangements, the new higher risk building regime applies.

The Building Safety Regulator (BSR) has warned that it expects there to be a deluge of applications from 6 April 2024, owing to the seemingly low number it recently said it had received so far. Notwithstanding the comments from the BSR, one cannot help but wonder whether the lack of applications to date is more as a result of the industry getting to grips with the new regulations, and perhaps a lack of appetite for new HRB developments in light of the significant risks and extensive liability involved in them. Time will tell.

In terms of building safety claims, the first court judgment on a BLO claim is awaited, as well as the Supreme Court grappling with aspects of the Building Safety Act as it relates to historic liabilities, when it hears the appeal later this year in URS Corporation v BDW Trading. The Court of Appeal will also hear a second appeal in the Hippersley Point case (Adriatic Land 5 v Leaseholders) on the proper construction of several parts of schedule 8 of the Building Safety Act 2022.

Whatever the future holds, it is clear that engaging with building safety issues remains a focal point for anyone with an interest in residential property - and more widely, and we have certainly not seen the last of the developments and regulations in this sphere.

Return to news headlines